Dual-use export control appeal rules take effect in Ireland

New regulations on export licensing appeals came into law on 13 November, ending a wait of 10 years for such rules to be enacted.

Rules on the exporting of dual-use items are set at EU-level under the Dual-Use Regulation, which provides for common EU control rules, a common EU control list and harmonised policies for implementation. While that legislation is directly applicable in all EU countries, member states have some discretion to set their own national rules on licence procedures and enforcement

In Ireland, the EU export control rules are implemented by the Control of Exports Act 2008 (Control of Exports Act).

Under the EU regime, the export of dual-use items is regulated and dual-use items may not leave the EU customs territory without an export authorisation. A limited number of dual-use products that are particularly sensitive require an export licence when exporting them within the EU customs territory.

Dual-use items are goods, software or technology which can be used for civil and military purposes. Encryption software, for example, is subject to export controls because it is capable of dual-use: although such software can be used to ensure the confidentiality of information for common commercial transactions, it can also be used for illicit purposes.

The Export Licensing Unit (ELU), which sits within the Department of Business, Enterprise and Innovation, is responsible for the implementation and enforcement of export control regulations in Ireland.

The Control of Exports Act provides for new regulations to be introduced to give dual-use export licence applicants a right to appeal against decisions by the ELU to refuse their applications. However, only now, through the new Control of Exports (Appeals) Regulations 2018, have those appeals rules been introduced.

"The new regulations allow applicants that have been refused an export licence to appeal the decision to the minister for business, enterprise and innovation within 28 working days," said Dublin-based Dermot McGirr of Pinsent Masons, the law firm behind Out-Law.com, who specialises in export control compliance.

"Importantly, when a decision to refuse a licence is appealed, the decision remains in effect until the appeal is determined. If the appeal is successful and an export licence is granted to the applicant, the export licence is back-dated to the date of receipt of the appeal," he said.

"We welcome the new appeal regulations and expect that they will bring clarity to the process for applicants, and allow for greater transparency in the export licence procedure," McGirr said.